Ngatae v R [2016] NZHC 3068 (14 December 2016)

Last Updated: 10 January 2017

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000032 [2016] NZHC 3068

BETWEEN	MALACHI AUMETUA-TIPENE NGATAE Appellant
AND	THE QUEEN Respondent

Hearing:	14 December 2016
Appearances:	S A Saunderson-Warner for Appellant R D Smith for Respondent
Judgment:	14 December 2016

_{ORAL JUDGMENT OF GENDALL J}

Introduction

[1] The appellant, Mr Ngatae, was sentenced to two years and one month’s

imprisonment by Judge Phillips in the District Court at Dunedin on 23 November

2016 in relation to charges of injuring with intent to injure and injuring by an unlawful act.

[2] He appeals against his sentence on the basis that it is manifestly excessive. Grounds for this appeal are primarily that the sentence was excessive by reason of the uplift adopted on the charge of injuring by an unlawful act being too great. The ultimate sentence, the appellant says, should have been less than two years’ imprisonment and a sentence of home detention should have been substituted.

Factual Background

[3] Turning now to the factual background in this matter, the charge of injuring with intent to injure involved an incident that occurred in the early hours of Saturday

NGATAE v THE QUEEN [2016] NZHC 3068 [14 December 2016]

20 February 2016. The appellant (who was then aged 17) was with a group of friends. He received a telephone message from an associate saying that a friend was being assaulted and he went to that location. The appellant and a number of his associates approached a vehicle driven by the victim. One of those co-defendants punched the victim in the face through the window of the vehicle. He was then pulled from the driver’s seat. From a few metres away, the appellant threw a bottle which struck the victim to the rear of his scalp. The appellant then punched the victim to the head. The victim ended up on the ground and the appellant and others punched and kicked him to the head and body while he was on there. The victim received a cut to his scalp and a swollen and bruised right eye and cheek. The appellant admitted his involvement. His co-defendants, however, have pleaded not guilty and are awaiting trial.

[4] The other charge, this one of injuring by unlawful act, arose as a result of an incident on 20 August 2016. During the afternoon on that day the appellant was attending a street party in Dunedin. The victim in that incident was heavily intoxicated and was sitting on the footpath outside the address in question. The appellant approached him and said he wanted to punch the victim but he left only to return a short time later. At that time, the appellant stood in front of the victim and made a derogatory comment about the victim’s mother. He then punched him once on his jaw using his closed fist. The punch caused the victim to fall to the ground. The victim received a concussion resulting in an ongoing headache.

District Court’s Decision

[5] Turning now to the District Court’s decision, the appellant, as I understand it, does not take any issue with Judge Phillip’s sentencing on the charge of injuring with intent to injure. Nor does the appellant take issue with the discount given for his age, remorse and early guilty plea. The only issue taken by the appellant is the

12 months’ cumulative imprisonment imposed for the injuring by unlawful act. To provide context, however, it is useful to briefly summarise Judge Phillips’ overall sentencing decision.

[6] For the charge of injuring with intent to injure, carrying a maximum penalty of 10 years’ imprisonment, the Judge adopted a starting point of two years and nine months. On the charge of injuring by unlawful act, which carries a maximum penalty of three years’ imprisonment, the Judge imposed a cumulative sentence of

12 months’ imprisonment. The aggravating features of that conviction were identified as:

Here there was a punch sufficiently hard enough to knock the man to the ground. It was totally unprovoked. A lashing out has caused the victim difficulties. I consider a merciful starting point for that charge is one year’s imprisonment. That term will have to be cumulative on the two years and nine months making a total overall sentence of three years and nine months’ imprisonment.

[7] The Judge then took into account the principle of totality and reduced the total sentence to one of three years and six months’ imprisonment. He then gave a

40 per cent discount in recognition of the appellant’s guilty plea, youth, and remorse. [8] The end sentence became one of two years and one months’ imprisonment.

Appellant’s submission

[9] On issues concerning the injuring by unlawful act offending, the appellant referred this Court to two High Court decisions in support of his appeal. The first, in Koloamatangi v New Zealand Police. It involved a situation where the defendant and the victim were outside a nightclub.¹ The defendant hit the victim once to the chin causing him to fall backwards and hit his head on the pavement. He was seriously injured requiring extensive medical intervention to save his life as he had received a cracked skull. The victim spent a number of weeks in hospital and required ongoing rehabilitation. In that case a 15 months starting point was adopted

in the District Court. It was not interfered with on appeal, although personal mitigating factors resulted in the appeal being allowed.

[10] The second case is Tutaki v New Zealand Police.² Here, the appellant faced three charges, one of which was a charge of injuring by unlawful act. The facts in

_{that matter were that the defendant became involved in an altercation in the early}

¹ _{Koloamatangi v New Zealand Police HC Auckland CRI-2012-404-82, 24 April 2012.}

² Tutaki v New Zealand Police [2016] NZHC 1177

hours of the morning. He used his elbow to strike the victim in the face area. This caused the victim to be knocked unconscious. The victim fell backwards and hit his head on concrete tiles causing a laceration to the back of his head. He was later found to have suffered a brain bleed requiring specialist treatment at hospital. The appellant in that case also assaulted two other victims. The District Court Judge adopted a starting point of 12 months’ imprisonment on the lead charge.

[11] In light of these authorities the appellant submitted that a starting point of six months instead of 12 months should have been adopted here. The appellant contends that the injuring caused in both Koloamatangi v New Zealand Police and Tutaki v New Zealand Police was far more serious than that caused in the current circumstance. Had the Judge adopted a starting point of around six to eight months, the end result would have been less than two years, allowing the Court to consider whether home detention is an appropriate substitute.

Jurisdiction

[12] Turning now to jurisdiction issues, the appellant appeals as of right.³

Pursuant to s 250 of the Act, the appeal must only be allowed if the Court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed. If either element is not satisfied, the appeal court must dismiss the appeal.

Analysis

Whether the starting point for injuring by unlawful act was manifestly excessive?

[13] I turn now to consider whether the starting point for injuring by unlawful act was manifestly excessive. Having considered the appellant’s submissions and the authorities referred to me, I cannot be satisfied here that Judge Phillips erred in imposing a cumulative sentence of 12 months’ imprisonment on the sole charge of assault by unlawful act. At the outset, I note that the appellant does not take issue with the sentence being imposed on a cumulative basis. The incident of injuring by unlawful act was significantly distinct and separate in time, place and circumstance

_{for the two incidents of offending to be treated individually. A concern here must}

³ Criminal Procedure Act 2011, s 244.

obviously be the young age of the appellant at the time of this offending, he being

17 or 18.

[14] But, turning to what happened in this case, as Judge Phillips noted, the injuring by unlawful act was severe enough to knock the victim to the ground, rendering him unconscious. It was totally unprovoked. The lashing out has caused the victim difficulties. According to the victim impact statement, the concussion seriously affected the victim. He had to take three weeks off work due to headaches, fatigue and being unable to concentrate. This also affected him financially as ACC payments were only 80% of his normal wages. He is now more wary and cautious in social situations, in fear of meeting the appellant.

[15] I also do not find in this case that the offending can be distinguished from Koloamatangi and Tutaki to the extent that a starting point of six months on the injuring by unlawful offence can be warranted. While the injuries caused in those other cases were more serious than the current circumstance, the culpability of the offenders is generally similar. What significantly aggravates the charge of injuring by unlawful act here is the fact that the appellant was on bail for another serious violent offending at the time of this offence. Both offending incidents before me also were unprovoked and caused great harm to two different victims. And, as I understand it, the incidents in both Koloamatangi and Tutaki were generally provoked in some sense. It could not be said that a 12 months’ starting point was manifestly excessive.

[16] Furthermore, even if the starting point of 12 months’ imprisonment was found to be manifestly excessive, Judge Phillip’s reduction of a further three months’ to take into account the principle of totality, in my view, corrects any question of an excessive starting point contended by the appellant. The actual starting point, taking into account the principle of totality, was between nine to 10 months’ imprisonment. This was well within the acceptable range of sentences at the Judge’s discretion.

Whether leave to be granted for home detention?

[17] For the reasons I have outlined above, I do not need to consider whether leave to apply for home detention should be granted. This is because the sentence

imposed was two years one months’ imprisonment and therefore above the “short term imprisonment” period.

[18] However, a brief comment on the principle that the sentencing judge cannot artificially tailor the sentence calculation to bring it within the two year threshold is appropriate here. The appellant in the present case is essentially asking this Court to tailor the end sentence in order to allow home detention to be considered as a substitute. However, this approach was firmly rejected by the Court of Appeal in

Solicitor General v Lam⁴ and R v Edwards.⁵ Judge Phillips, in my view, clearly did

not err in this case in disregarding the possibility of home detention and imposing what he thought was the appropriate sentence.

Result

[19] For all the reasons I have outlined above, this appeal is dismissed.

...................................................

Gendall J

Solicitors:

Sarah Saunderson-Warner, Dunedin

RPB Law, Dunedin

⁴ _{Solicitor-General v Lam (1997) 15 CRNZ 18 (CA)}

⁵ R v Edwards [2005] NZCA 304; [2006] 3 NZLR 180.